Jack Nelson Jones Professional Association

December 3-9, 2018

ROXANNE M. GARRISON AND MERCY HOME HEALTH BERRYVILLE v. CHARLES HODGE AND MARY HODGE, 2018 Ark. App. 556, 2018

This case arose on an appeal from Boone County Circuit Court, Honorable Judge John T. Putman presiding, on a jury’s verdict against Roxanne Garrison and her employer, Mercy Home Health Berryville (collectively, “Mercy”), that awarded Charles Hodge (“Hodge”) and Mary Hodge a total of $5.21 million arising out of a collision between a motorcycle and a car. Mercy argued that the court erred in instructing the jury, in permitting counsel for the Hodges to make an improper closing argument, and in denying their motion for a new trial or remittitur (reduction of excessive damages). The judgment was affirmed by the Arkansas Court of Appeals.

The collision occurred around 2 p.m. on April 23, 2015. Hodge was riding his motorcycle south on U.S. Highway 65 in Harrison, Arkansas. Garrison, in the course of her job with Mercy, was traveling north on Highway 65. As Garrison attempted to make a left turn from Highway 65 onto Kenilworth Drive, she collided with Hodge’s motorcycle, striking it on the front and left. Hodge was thrown from his motorcycle, and suffered severe personal injuries, including the loss of his left leg above the knee.

Hodge filed suit against Mercy for injuries received as a result of the collision, alleging negligence by Garrison for failure to yield the right of way, failure to maintain control of her vehicle, and failure to maintain a proper lookout. The claims against Mercy were premised on vicarious liability because Garrison was acting in the course and scope of her employment with Mercy. The Hodges sought damages for both property damage to the motorcycle and for personal injuries and loss of consortium.

The case was submitted to a jury over five days. The court gave the jury a general-verdict form on the issue of Garrison’s negligence and gave separate verdict forms for each element of damages. One stated that Arkansas law in effect at that time prohibited operating a motor vehicle when the driver was inattentive and such inattention was not reasonable and prudent in maintaining vehicular control, and that violation of the law was evidence of negligence that the jury could consider. Mercy objected to the instruction.

Also, over Mercy’s objection, the court instructed the jury that one element of damages that Hodge claimed was for his loss of earning capacity. Mercy objected, claiming that there was no evidence regarding loss of earning capacity, because the evidence showed he made approximately $1,100 more in 2016 than he did in 2014, the years before and after the accident. Mercy specifically argued that there was no qualified expert to tie any disability rating to the loss of ability to earn income. The trial court overruled Mercy’s objection.

The jury found Garrison was negligent and that such negligence was the proximate cause of the damages suffered by Hodge. The jury also answered the separate verdict forms for each element of the Hodges’ damages. They awarded Hodge $1 million for the nature, extent, duration, and permanency of his injuries; $1 million for past and future medical expenses; $3 million for pain, suffering, and mental anguish; approximately $4,100 for lost earnings; approximately $103,000 for loss of earning capacity; $50,000 for scarring and disfigurement; and $5,500 for the difference in the fair market value of the motorcycle. The jury also awarded $100,000 for Mary Hodge’s claim for loss of consortium. The verdict form for Hodge’s disfigurement claim was signed only by eight of the twelve jurors; the court awarded $0 for this claim. Thus, judgment was entered on the jury’s verdict for $5,212,455.70.

Mercy filed two posttrial motions: one to stay enforcement of judgment pending appeal, which the court granted, and one for a new trial, arguing that the court erred in instructing the jury on inattentive driving and loss of earning capacity, that the verdict was excessive as to the claims for pain, suffering, and mental anguish; the claim for past and future medical expenses; and the claim for loss of earning capacity. The court denied the motion for a new trial. On appeal, Mercy contended the court erred by (1) instructing the jury on inattentive driving because there was no evidence that Garrison was driving inattentively; (2) instructing the jury on lost earning capacity because the evidence did not show that Hodge suffered any loss of earning capacity; (3) permitting Hodge’s counsel to make an improper closing argument and refusing to grant a new trial to remedy the error; and (4) denying Mercy’s motion for a new trial or remittitur because the jury’s award of damages was grossly excessive. 

On appeal, Mercy first argued that the circuit court erred in instructing the jury on inattentive driving for lack of evidence that she was driving inattentively because Garrison testified she was not using her cell phone, texting, smoking, or changing the radio station at the time of the collision, and the officer who investigated the accident said that he could not tell that Garrison was distracted. The Court of Appeals ruled it would not reverse the court’s decision to submit a jury instruction unless the lower court abused its discretion. Accordingly, it was only required that there be “some basis” in the evidence to support the instruction.

Garrison testified that she did not see or hear Hodge’s motorcycle, but the Court observed that one cannot claim as proof of attentiveness that she did not see what was plain to be seen. There was also testimony from her from which the jury could infer that she was impatient and, in a hurry, because she had sat, waiting to turn for “several minutes,” so there was “some basis” to support giving the instruction on inattentive driving.

Mercy made two arguments about Hodge’s loss-of-earning-capacity claim. The first was there was no evidence to support giving the instruction, and the second was that the jury’s award of damages for loss of earning capacity was without evidence to support its verdict on this issue.

The Court noted that the loss of future wages and the loss of ability to earn were two separate and distinct elements of damages. The impairment of the capacity to earn, however, is the gravamen of the element. The fact that Hodge was earning more after the injury than at the time of the injury was evidence to be considered but did not preclude recovery for loss of earning capacity. The Court observed that proof of loss of earning capacity did not require the same detail as did proof of loss of future wages. As there was proof of permanent disability, it was correct to submit it to the jury even without specific evidence of monetary loss due to inability to earn in the future. No numerical “impairment rating” was required in this instance, where the jury could have inferred loss of earning capacity from the nature of injuries, loss of a limb. 

The Court noted that parity of wages might have shown lack of impairment of earning power if it confirmed other evidence that Hodge had completely recovered from his injuries. Here, Hodge suffered the loss of his left leg above the knee. He testified that he could not fully perform all the functions of his job as before the accident. Therefore, there was evidence that his ability to earn had been limited.

The closing argument given by Hodge’s attorney was also challenged by Mercy, but the Court found that Mercy, by changing its argument at trial and on appeal, had not preserved its objection.

For its fourth point, Mercy argued the jury’s award of damages for pain and suffering and for past and future medical expenses were excessive. The Court noted that the jury had wide discretion in awarding damages in a personal-injury case. Where an award of damages was alleged to be excessive, the Court was required to review the proof and all reasonable inferences in a manner most favorable to the appellee to determine whether the verdict was so great as to shock the conscience of the Court, and it must consider elements such as past and future medical expenses, permanent injury, loss of earning capacity, and pain, suffering, and mental anguish.

Mercy argued that the jury’s award of $3 million for pain, suffering, and mental anguish was excessive and not supported by the evidence. Mercy argued that testimony from Hodge and from Dr. Ted Lennard, who examined Hodge and reviewed the medical records, indicated that Hodge had minimal or no pain and no signs of anxiety or depression. The Court found that the amount of damages depends on the circumstances of each case and found that pain and suffering could have been inferred from the serious nature of the injury. Here, the Court found there was no doubt that Hodge suffered a severe, traumatic injury that resulted in the loss of his left leg above the knee. Hodge had also testified he could no longer do several of the activities that he formerly enjoyed. These changes in lifestyle also supported an award for pain and suffering.

The jury had awarded $1 million for past and future medical expenses and $1 million for the nature, extent, duration, and permanency of the injury. In light of the actual damages, the Court found the jury’s award of $3 million for pain, suffering, and mental anguish was not out of line. Finally, the Court disagreed that the award for past and future medical expenses was excessive. Hodge’s total past medical expenses, including prosthesis, was $379,000. The prosthesis had to be maintained, repaired, and then replaced every three to five years. Moreover, the Court noted that physical therapy was to be an ongoing, lifelong part of this cycle. The Court found that the $1 million awarded by the jury for future medical expenses was not excessive.

For the above reasons, the Court of Appeals affirmed the jury’s award and the judgment of the lower court.